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In Stephens v. DeGiovanni, the Plaintiff Stephens filed a lawsuit against Deputy DeGiovanni of the Broward County Sheriff’s Office arising out of his arrest. Two of his claims raised in this appeal for false seizure (arrest) and excessive force pursuant to 42 U.S.C. §1983. In this appeal to the Eleventh Circuit court of appeals, Stephens challenged the trial court grant of summary judgment to the deputy on the false arrest claim there was probable cause for the arrest. The trial judge also granted summary judgement on the excessive force claim because the force used in the arrest was de minimis.

The facts surrounding this arrest took place on February 16, 2009 in Fort Lauderdale, Florida in an apartment complex where Stephens and his cousin were guests of the cousin’s girlfriend, Claudia White. White’s apartment was on the second floor of a complex with businesses on the first floor and apartments on the second floor. Stephens and his cousin were checking on a car owned by Stephens girlfriend that she was planning to sell to White. White, who is a car mechanic, was sitting on the metal frame of the care using a diagnostic scanner to determine why a check engine light had come on.

Deputy DeGiovanni was on road patrol at 8:15 pm and aware of recent burglaries in the area. Because it was late and all the businesses were closed he decided to investigate so he approached and asked what they were doing. After they explained what they were doing, the deputy informed them that they were not supposed to be there. They explained they were invited guest of White who lived at the complex. The deputy asked for identification and Stephens produced a State of Florida identification card. He possessed a driver’s license issued in Jamaica where was from. While standing by the deputy Stephen’s phone rang. When he answered it the deputy slapped it away. When Stephens asked the deputy to get a field supervisor on the scene, the deputy told him to shut his mouth. The deputy then slugged Stephens in his chest slamming him into the driver’s seat. The deputy proceeded to hit Stephens two more times causing injury to his hand and arm.

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McCullough was arrested and convicted for marijuana distribution. His conviction was affirmed by the Eleventh Circuit Court of Appeals in United States v. McCullough. This is how the facts unfold. He was initially pulled over by an Alabama police officer for driving with a partially obscure license plate. While the numbers on the Alabama issued plate were visible, a license bracket in the shape of an eagle with outstretched wings obscured pares of the license plate including the state of issue. Alabama law provides that every motor vehicle operator shall at all times keep the license tag or license plate plainly visible on the rear end of a mother vehicles. The officer stopped McCullough because the officer believe that he had violated this law by having the eagle bracket. When McCullough was stopped, the officer issued him a ticket for failing to have a plainly visible license plate.

The officer then smelled marijuana coming from the inside of the truck and a search of the truck led to the discover of $8,335 and a marijuana. After the officer seized $4,000 and a key to a hotel room, the officer obtained a search warrant for the room and found $1,000, bags of marijuana and a gun.

He was charged with possession with the intent to distribute marijuana, possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm. He moved to suppress on the grounds the officer lacked probable cause or reasonable suspicion to stop him for partly obscuring the license plate because Alabama law only requires that the alphanumeric symbols be visible not the full license plate. The district court denied the motion. He pleaded guilty to each count before a magistrate judge. Prior to sentencing the probation officer calculated the guideline range to be 262-327 base on his status as a career offender with a career history e category of VI and a consecutive mandatory minimum of five years for being a felon in possession of a firearm.

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In United States v. Bergman the defendants were convicted following a jury trial of conspiracy to commit health care and wire fraud, paying bribes and kickbacks in connection with a federal health care benefit program. Bergman was sentenced to 180 months and the other defendant was sentenced to 150 months.

Bergman was a licensed physician’s assistant employed by American Therapeutic Corporation that operated a Partial Hospitalization Program (PHP). A PHP serves as a bridge between inpatient and outpatient care for patients with a psychiatric condition serious enough to possibly require hospitalization. A community mental health center such as ATC administers a PHP, which offer intensive outpatient psychiatric care including individual or group psychotherapy, counseling and other mental health services. Staff at a PHP includes psychiatrists as well as nurses, physician’s assistants, occupational therapists, physical therapists and social workers.

After ATC was founded it developed into an extensive Medicare scammed billed Medicare for approximately $200 million in claims. While ATC did have some patients who needed psychiatric help and qualified for service, most did not and ATC did not provide the individualized treatment required by Medicare. Doctors that came in generally did nothing.

In this case the defendants created fake medical records and recruited patients in exchange for kickbacks. ATC paid its patient recruiters hundreds of thousands of dollars each month in cash in order to avoid any red flags or paper trail. They even kept a log of kickbacks paid.

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In this appeal the Eleventh Circuit court of appeals reversed a federal court’s order denying the defendant’s motion to vacate his sentence pursuant to 28 U.S.C. 2255.  In Phillips v U.S., the defendant had been charged with numerous drug related offenses and with being a felon in possession of ammunition. A jury convicted him on one count of conspiracy to distribute less than five grams of crack cocaine, one count of crack cocaine distribution, one count of cocaine possession, and two counts of possession of ammunition after a prior felony conviction.

Following the filing of the defendant’s 2255 and while it was pending, the government discovered that Agent Michael Ghent an officer with the West Palm Beach Police Department had lied at trial, during the investigation and that he had been under investigation by his own police department for alleged criminal activities. Other investigations showed he had engaged in a sexual relationship with his CI, used illegal substances and provided false information in various government forms and submitted a false affidavit in a state criminal prosecution.

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In U.S. v Vargas the defendant was charged with conspiracy to possess with intent to distribute and possession of cocaine after Alabama law enforcement officers discovered cocaine and methamphetamine in Vargas’ vehicle. Vargas filed a motion to suppress on the grounds that Vargas’ traffic stop that led to the discovery of the drugs violated Fourth amendment.

Here, Alabama law enforcement officer pulled over the defendant for following too close and failing to maintain its lane. The driver immediately admitted that he did not have a driver’s license. The officer asked him to come back to the officer’s car where the officer asked him routine questions about where he was going. After about three minutes the officer informed him that he was issuing him a warning for following too close. He continued to ask defendant some questions to complete the warning. He then approached the passenger to determine whether he could operate the vehicle. When the passenger said he did not have a license, the officer spent another 12 minutes working with the two in an attempt to determine how to safely and legally get the car moved. About 18 minutes into the traffic stop and 15 minutes after the enforcement officer informed he was issuing a warning, the officer asked the defendant for consent to search the vehicle and the defendant consented. The search turned up the drugs hidden in the vehicle.

The defendant contended on appeal that the length of the traffic stop violated the fourth amendment. The court cited the Supreme court’s opinion in Rodriguez v United States which states as a general matter a traffic stop exceeding the time needed to handle the matter for which the stop was made is a violation of the Constitution’s shield against unreasonable seizures.

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In U.S. v. Votrobek the appellants were convicted by a jury of conspiracy to distribute drugs, conspiracy to launder money and substantive charges of money laundering and maintaining a place for unlawful drug distribution.   The charges arose from their operation of a pill mill, a term used to describe a medical clinic that prescribes narcotics for illegitimate purposes. The appellants first learned how to run a pill mill clinic from a Zachary Rose who operated three clinics in Jacksonville Florida. Once law enforcement began investigating Rose’s clinics, the appellants left and established their own clinic, AMG, in the fashion of a typical pill mill.

Later, Votrobek was indicted for conspiracy to distribute Oxycodone and Alprazolam in Rose’s Florida clinics but a jury acquitted him.

Less than two months after his acquittal in Rose’s Florida pill mill, a Federal Grand jury in Georgia indicted Votrobek and others regarding their involvement in AMG, charging them with conspiracy to distribute Oxycodone, Xanax, and other drugs for other than a legitimate medical purpose. He was convicted on all counts. In his appeal, he claims the district court committed plain error by not dismissing the Georgia conspiracy charges on Double Jeopardy grounds. He argued the conspiracy counts were barred by Double Jeopardy and the trial court committed plain error by not dismissing the substantive convictions based on prejudicial spillover.

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In U.S. v Scheels the Defendant pled guilty to one count of production of child pornography and one count of receipt of child pornography and received a 600-month sentence of imprisonment. In calculating his sentencing guideline range, the district court imposed a four-level enhancement under 2G2.1(b)(4) of the U. S. Sentencing Guidelines. This guidelines provision requires the imposition of a four-level enhancement where a defendant’s “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” The defendant conceded that the pornography he produced does depict sadistic or masochistic conduct and admitted that it contained among other things images involving whipping and bondage. But the defendant argued that the enhancement should not apply to him because the sadistic or masochistic conduct in the pornography was directed at him not the child victim.

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After a two-week trial, defendant in U.S. v Stein was convicted of mail, wire, and securities fraud based on evident that he fabricated press releases and purchase money orders to inflate the stock price of his client, Signalife, Inc, a publicly traded manufacturer of medical devices. The district court sentenced Stein to 205 months in prison, ordered $5 million in forfeiture, and $13 million in restitution. In his appeal Stein argued that the government failed to disclose Brady v. Maryland material to the defense before trial and knowingly relied on false testimony to make its case. As for the sentence, Stein argues that the district court erred in calculating actual loss for the purpose of the Mandatory Victims Restitution Act of 1996 (MVRA) and § 2B1.1 of the U.S. Sentencing Guidelines. He argued that in estimating actual loss the district court erroneously presumed that all purchasers of Signalife stock during the period the fraud was ongoing relied on false information advanced by Stein.   He also argued that the district court failed to take into account other market forces that likely contributed to the investors losses.

After the Department of Justin conducted a criminal investigation of Stein and his work with Signalife, he was charged with money laundering and wire and securities fraud. Prior to his trial Stein moved to produce documents in the Security and Exchange Commission’s (SEC) files. The government’s response was that is lacked control over the SEC and it did not conduct a joint investigation with the SEC. Prior to trial Stein learned that in the course of its investigation the DOJ had accessed a very small subset of documents in the SEC’s date base which the DOJ then provided to him. As a result he filed a motion to dismiss on the basis of this Brady violation. Following his conviction at trial, he obtained additional documents from the SEC that he believed were exculpatory and he filed motion for a new trial based on the Brady violation.

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In this case Garcia Martinez pleaded guilty to reentry after deportation in violation of 8 U.S.C. Sec. 1326(a) and his guidelines sentence was enhanced 16 levels by the district court who found his Florida conviction for second degree burglary of a dwelling, for which he was deported, was a crime of violence. He appealed the district court’s conclusion arguing that the facts of the Florida conviction for burglary of a dwelling as set forth in the presentence report do not qualify for a 16- level increase in his guideline range.

The court of appeals reversed after determining that the Florida statute does not fall under the enumerated offense clause definition for crime of violence under the sentencing guidelines.

The court arrived at this decision by first determining that the generic definition of the enumerated offense of burglary requires the unlawful entry into a building or structure with intent to commit a crime. However, the sentencing guidelines specifies that the offense must be a burglary of a dwelling. This required the court to determine the generic definition of a dwelling. It concluded a generic dwelling is a building or portion thereof, a tent, a mobile home, a vehicle, or other enclosed space which is used or intended for use a s a human habitation.

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The issues in Dukes v Deaton were whether a police officer who threw a diversionary device known as a “flashbang” into a dark room occupied by two sleeping individuals without first visually inspecting the room is entitled to qualified immunity against a section 1983 lawsuit claiming excessive force and whether the officer was entitled to qualified immunity against a complaint of assault and battery. Narcotics officers of the Clayton County Sheriff applied for a search warrant of Jason Ward’s apartment based on confidential informant’s information that he sold narcotics out of his apartment. The search warrant application noted that Ward was known to carry a handgun. The application sought a “no-knock” provision because “drug dealers commonly use weapons, dogs, and barricades to hinder law enforcement in the execution of their duties. Prior to execution of the warrant the SWAT team held an operational meeting to discuss the plan of entry. The Defendant and other SWAT members were given flashbang devices to uses. These are classified as explosives that can generate heat in excess of 2,000 degrees centigrade and over 150 decibels of noise for less than one-half second. Because they have the potential to cause serious bodily injury, the officers received official instruction to visually inspect an area first before deploying a flashbang.

The search warrant execution plan did not call for Deaton to deploy his flashbang, however the plan gave all SWAT team member the authority to use more flashbangs if needed. As the SWAT team executed the search warrant at 5:30 a.m., Deaton deployed his flashbang threw the bedroom window where Dukes was sleeping. The explosion caused Dukes to suffer severe burns and she spent three days in the hospital.

Dukes filed a complaint against Deaton and the Commander Branham alleging a violation of Duke’s right to be free from excessive force under the Fourth Amendment and a state law claim for assault and battery against Deaton.

The district court granted motions to dismiss finding the officers were entitle to qualified immunity against the excessive force and against the assault and battery claim and filed this appeal.

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